At one point in their life Komal Mulchandani and her husband Jaideep, a childless couple from Jersey City, New Jersey, had only two options to become parents after they had exhausted all possible medical treatments for infertility — either go for adoption or find a surrogate who would be willing to carry the couple’s baby.
Around 2015 when the couple was weighing the options, they felt more favorably inclined towards going for surrogacy because that would help them share the genetic link with the would-be-born, which would not be the case if they went for adoption.
But the problem with the former choice was that the law in New Jersey at that time did not allow gestational surrogacy in lieu of compensation, thanks to the infamous “Baby M” case in 1988 that led to banning of the practice for almost the next 30 years.
That is when Komal Mulchandani decided to go for commercial surrogacy and go to India to find a surrogate. “When we decided to go for surrogacy, I had absolutely no idea about how the whole process works and the various issues one has to deal with along the way. I had not heard about surrogates or understood the practice in its entirety and was a little nervous,” she told this correspondent.
“At that point I did some research and watched the 2009 movie called ‘Google Baby,’ produced and directed by the Tel Aviv filmmaker Zippi Brand Frank telling the story of the up and coming baby production industry in the age of globalization,” Komal Mulchandani, a former pharmaceutical industry executive from Jersey City who was born and raised in the U.S., now living in Pennsylvania, said.
From then on, she and her Ahmedabad-born husband Jaideep, a computer programmer in the U.S., would spend considerable time and effort to find a commercial surrogate in India for a fee through the help of private agencies advertising for what was known in India as “womb hiring.”
That search ended in 2015 when they found a surrogate in Pune who eventually delivered twin daughters for them in June 2016.
There were some anxious moments for the couple toward the last stages of the surrogate’s pregnancy as the Indian government was considering passing a bill in parliament to outlaw commercial surrogacy, an industry estimated to have been worth as much as $2.3 billion annually. There were rumors the Mulchandanis won’t be allowed to bring their babies back to the U.S.
The Indian government prohibited foreigners from hiring Indian surrogates in 2015, but the bill to ban commercial surrogacy even for Indians has not yet passed both houses of Parliament.
New Jersey-based Dr. Kamal K. Dutta, the first Non Resident Indian physician to set up a hospital in India in 1985 named Ruby hospital in Calcutta, said, following the passage of the law in the Lok Sabha that allows only a friend or a close relative of an resident Indian couple to act as a surrogate if they are childless, it would certainly be most difficult now even for an NRI to find a surrogate in India like in the past.
“So commercial surrogacy in India now is out of question even for Indians living here and I feel it may have some impact on childless Indian couples living here, although I must say that medical treatment for infertility in the last 20 years or so has advanced a lot and therefore gestational surrogacy may not be needed except in very rare cases,” Dutta, former chairman of the Department of OB-GYN at St. Mary’s Hospital as well as Passaic General Hospital in New Jersey, told this correspondent.
Komal Mulchandani said, “We were fortunate that before it was actually banned, we were among the last few women from outside of India to become mothers through gestational surrogacy. I still thank my stars for that.”
Two years after the couple’s successful baby venture in India, New Jersey Governor Phil Murphy signed a law, legalizing gestational carrier agreements, effectively lifting the 30-year ban on surrogacy in the state.
The new law reflects many long-established best practices for surrogacy agreements, including that a surrogate may choose her own medical care for the pregnancy, labor, delivery and postpartum care and the intended parents also are required to undergo a psychological evaluation and are permitted to pay for legal, medical and living expenses incurred during the pregnancy. The intended parents are also to be listed as the sole legal parents on the baby’s birth certificate.
After the Mulchandanis achieved parenthood through gestational surrogacy, they also legally adopted the twins. “It was not legally necessary, but we did that anyway just to be on the safe side when we are back in the U.S.,” she said.
Experts say the new law in New Jersey is a welcome “roadmap” for intended parents, Assisted Reproductive Technology (ART) providers and is a progressive, humane law today that signals that Americans are ready to move past the “Baby M” backlash and make the potential for parenthood more accessible for all who want and deserve it.
Sital Kalantry, a Clinical Professor of Law at Cornell Law School, who has done extensive research on the subject, feels that surrogacy provides a way in modern time for infertile people as well as same-sex couples and single individuals to become parents. In June this year Kalantry testified in Albany before the New York State Senate Judiciary Committee in favor of a bill that would legalize and regulate compensated surrogacy in New York State.
According to her, when a woman chooses to support a couple or individual by serving as a gestational surrogate she must have the autonomy to do so as long as she is protected by the law to ensure that any power imbalance between her, on the one hand, and the intended parents, surrogacy agencies and doctors, on the other hand, is mitigated.
“In speaking to state legislative representatives, I learned that one reason some worry about allowing surrogacy is because they think women, particularly poor and minority women will be exploited,” Kalantry said in published interviews.
While the bill passed in the New York Senate, it had enough opponents in the Assembly, particularly among women members, to block a floor vote.
Experts have said re-examining the current law was long overdue because of technological advances and changes in acceptance of various family structures that have made surrogacy much more commonplace.
“Many women’s rights organizations as well as Catholic groups felt that women in New York would be exploited just like surrogates in India if it were legalized here,” Kalantry told this correspondent.
“But parents, who want to have a child through surrogacy can easily go to a different state, where compensated surrogacy is permitted, to have gestational surrogacy. Although the New York Bill failed to pass this past legislative session, this bill would be tried again, in the future, maybe even next year,” Kalantry said.
In a research paper “Should Compensated Surrogacy Be Permitted or Prohibited?” published in September 2017 by Cornell International Human Rights: Policy Advocacy Clinic, Kalantry noted that the New York surrogacy law was passed on recommendations of a report published in 1988 by the New York Task Force on Life and the Law which raised concerns that surrogacy involved new and “relatively untested technology” and posed questions about baby-selling and the best interests of children, potential impact of surrogacy on family-life and relationships, individual liberty in human reproduction, among others.
“Many of the Task Force’s concerns are either no longer relevant, due to developments in the practice of surrogacy and in the conception of a family, or have not been borne out,” she observed.
While most states explicitly permit or do not have any laws regulating surrogacy, New York is one of two states in the country that do not enforce both compensated and uncompensated surrogacy arrangements and impose fines and criminal sanctions upon people involved in compensated surrogacy arrangements.
Along with New York Michigan is the other state, the only two that impose criminal penalties unlike other states, who also have similar restrictions but don’t criminalize it.
Experts believe gestational surrogacy is becoming more popular these days than just a few years ago.
According to CDC’s figures relating to Assisted Reproductive Technology (ART), between 1999 and 2013, about 2 percent (30,927) of all assisted reproductive technology cycles used a gestational carrier.
The American Society for Reproductive Medicine estimates that the number of reported babies born live in the U.S. as a result of gestational surrogacy has more than doubled in seven years — from 738 in 2004 to 1,593 in 2011.
Although he could not specifically talk about Indian-Americans opting for gestational surrogacy in New Jersey, Peter G. McGovern, Clinical Professor in the Department of Obstetrics, Gynecology & Women’s Health at Rutgers University, said gestational carriers are a very small part of what is done by his department, adding that he has plenty of Indian-American patients but not anyone seems to have gone for gestational surrogacy. “I believe that gestational surrogacy is the last option for most people because most of the reproductive issues of women can be fixed through medicine or surgery and there is a very small percentage of women who actually cannot carry pregnancy. On the top of it, gestational surrogacy is very expensive in the U.S.,” McGovern said.
In response to a question, he said that while he has done gestational carriers for years in New Jersey, Indian-Americans might want a carrier who is an Indian or may want to go to India in order to save money because it was cheaper there than in the U.S.
“Also, in my experience Indian couples who need an egg donor are very concerned about getting an Indian egg donor. We used to have a lot of people who would go back to India to get an Indian egg donor. Now, there are egg banks here that are international and would ship eggs, so you don’t have to go out of the country and one can get eggs of Indian extract which is available in the U.S.,” McGovern said.
“They (Indian-Americans) are interested in the genetics of the egg. For some reason in this country, not many Indian women have chosen to become egg donors. The most egg donors are Caucasians and that is why it may be still a struggle to find an Indian egg donor,” McGovern told India Abroad.
But Indianeggdonoros.com,a premier resource in New York City and across the United States for those who are looking for egg donors and surrogates, says it has over 1,000 egg donors and surrogates in its database. Its website mentions that egg donors in its database including a combination of Indian, Caucasian, African-American, Hispanic and Asian egg donors from a variety of backgrounds.
Had New Jersey’s 30-year-old ban was lifted earlier, people like Komal Mulchandani perhaps would not have needed to go to India in search of a commercial Indian surrogate.
Although she and her husband eventually came back to the U.S. with the twins, their India sojourn was far from hassle-free in terms of selecting the surrogate, signing the contract and procedural bottlenecks they faced in India.
“At times there were so much frustrations. I must say it was not an easy journey for either me or my husband, but we kept at it patiently and with the perseverance during the entire process. And in the end, we got the reward in the form of two beautiful girls,” she said.
In the interview Kalantry said the situation in India in terms of surrogates is very different as the surrogates in India don’t have the protection of the court and that is why it is meaningless when they enter into contract.
“The surrogates can’t afford to go to the court to enforce the contract. The contracts also provide very little rights and protections to the surrogates. But here in the U.S. contracts are enforced and, in most cases, they have strong protections. For example, industry norms often require intended parents to pay for an independent lawyer for the surrogate and provide her with health and life insurance.The medical professionals here also ensure that surrogates are informed about the medical risks,” Kalantry said.
“But in India you don’t have informed consent as private medical establishments are not worried about liability or lawsuits from the poor and marginalized woman in India who become surrogates. “Instead of denying poor women an opportunity to make life-changing money, the government in India should enact legislations to provide strong protections for surrogates,” Kalantry said in the interview.